The government has now published its response to its further consultation on proposed reforms to the judicial review process. This follows an earlier consultation round in 2013, which resulted in
The government has now published its response to its further consultation on proposed reforms to the judicial review process. This follows an earlier consultation round in 2013, which resulted in changes to limitation periods (in planning and procurement cases) and removing the right of an oral renewal hearing where the claim has been considered as being totally without merit at permission stage. The government has repeatedly expressed concern that judicial review is being exploited as a "brake on [economic] growth".
In September 2013, the further consultation was initiated to address concerns of procedural defects in the judicial review system and to limit the impact of unmeritorious claims. Details of the consultation, which closed on 1 November 2013, and an outline of the proposed reforms, can be found here. The Government argues that the changes will limit weak claims and discourage those who wish to abuse the system, while stronger cases will be dealt with more quickly in the hope that taxpayers' money will be used more efficiently. The changes are likely to be implemented later this year through both the Criminal Justice and Courts Bill and by secondary legislation.
The government has announced that it will be implementing some but not all of these proposals. The following key proposals will be taken forward:
Probably the most controversial proposal in the September 2013 consultation was the mooted restriction on standing (i.e. who could bring a claim). This will now not be implemented. The government had expressed concern that the process of judicial review was being misused by those who sought publicity through a claim, or wanted to cause unwarranted delay to decision making. Section 31 of the Senior Courts Act 1981 requires a claimant to demonstrate a "sufficient interest in the matter to which the application relates" in order to be granted leave. The government's stance received widespread criticism and, in its response to the consultation, the government took the view that the best way to deal with standing was not to restrict who could bring a claim, but to limit the number of unmeritorious claims by way of the reforms outlined above.
In September 2013, the further consultation was initiated to address concerns of procedural defects in the judicial review system and to limit the impact of unmeritorious claims. Details of the consultation, which closed on 1 November 2013, and an outline of the proposed reforms, can be found here. The Government argues that the changes will limit weak claims and discourage those who wish to abuse the system, while stronger cases will be dealt with more quickly in the hope that taxpayers' money will be used more efficiently. The changes are likely to be implemented later this year through both the Criminal Justice and Courts Bill and by secondary legislation.
The government has announced that it will be implementing some but not all of these proposals. The following key proposals will be taken forward:
- The threshold which a defendant will need to satisfy in defending claims of alleged procedural defects in its decisions will be lowered. At present, the Court will refuse to grant permission (or a remedy) to a claim against a procedural defect which would "inevitably" have made no difference to the outcome. The threshold will be lowered so that, for permission remedy to be refused, a procedural defect must only be "highly unlikely" to have affected the outcome. The government is satisfied that it is reasonable for a claimant to have to prove "more than minor doubt" that a procedural defect had a material effect on the decision in issue.
- Reforms regarding costs at oral permission hearings, wasted costs orders, protective costs orders, interveners and non-parties are to be implemented. In particular, Protective Costs Orders benefitting claimants will be limited to "exceptional [and meritorious] cases with a clear public interest" and there will be a presumption that the Court will also include in the order a "cross cap" on the defendant's liability for the claimant's costs. Furthermore, parties who choose to intervene in proceedings (as opposed to being requested to do so by the Court) will be presumed to bear their own costs and those arising to other parties as a result of their intervention.
- Leapfrogging (where an appeal relating to a point of law which is of general public importance is transferred straight from the court of first instance to the Supreme Court, by-passing the Court of Appeal) is to take place more quickly and with fewer hurdles. The government will introduce wider criteria in which leapfrogging can take place, including: cases of national importance; cases that raise significant issues; and cases where a point of law is of general public importance. The parties to proceedings will not need to consent to this, and in addition to appeals from the High Court, leapfrogging will be permitted from the Upper Tribunal, Employment Appeals Tribunal and Special Immigration Appeals Commission; it will apply to civil and administrative proceedings generally, and not just appeals of judicial review decisions.
- A Planning Court (or Planning Chamber) is to be established within the High Court, with a separate list under the supervision of a specialist judge. This formalises the apparently successful Planning Fast Track introduced by the government in 2013.
Probably the most controversial proposal in the September 2013 consultation was the mooted restriction on standing (i.e. who could bring a claim). This will now not be implemented. The government had expressed concern that the process of judicial review was being misused by those who sought publicity through a claim, or wanted to cause unwarranted delay to decision making. Section 31 of the Senior Courts Act 1981 requires a claimant to demonstrate a "sufficient interest in the matter to which the application relates" in order to be granted leave. The government's stance received widespread criticism and, in its response to the consultation, the government took the view that the best way to deal with standing was not to restrict who could bring a claim, but to limit the number of unmeritorious claims by way of the reforms outlined above.